Opinion
9005 Index 24634/16E
04-16-2019
J.H. an Infant under the Age of Fourteen Years, etc., Plaintiff, v. 1288 LLC, et al., Defendants. 1288 LLC, et al., Third-Party Plaintiffs-Respondents, v. 1288 Washington, LLC, et al., Third-Party Defendants, BX Washington LLC, Third-Party Defendant-Appellant.
Ahmuty, Demers & McManus, New York (Frank J. Wenick of counsel), for appellant. Gallo Vitucci Klar LLP, New York (Kimberly A. Ricciardi of counsel), for respondents.
Ahmuty, Demers & McManus, New York (Frank J. Wenick of counsel), for appellant.
Gallo Vitucci Klar LLP, New York (Kimberly A. Ricciardi of counsel), for respondents.
Renwick, J.P., Gische, Kapnick, Kern, Moulton, JJ.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered March 13, 2018, which, to the extent appealed from as limited by the briefs, denied third-party defendant's motion to dismiss the causes of action for common-law indemnity and contribution as against it, unanimously affirmed, without costs.
Plaintiff alleges that he sustained injuries in connection with a bedbug infestation of his apartment. He commenced this action against defendants (collectively, Chestnut), the owners of the building, which brought a third-party action against the former owner (BX). Chestnut alleges that plaintiff's injuries were caused by BX's negligence or breach of contract while BX owned and controlled the building and was responsible for removing the bed bugs from plaintiff's apartment, and that any liability attributed to it, Chestnut, will be purely vicarious, without actual fault on its part. These allegations state a cause of action for common-law indemnity (see 17 Vista Fee Assoc. v. Teachers Ins. & Annuity Assn. of Am. , 259 A.D.2d 75, 81–82, 693 N.Y.S.2d 554 [1st Dept. 1999] ; Elkman v. Southgate Owners Corp. , 246 A.D.2d 314, 668 N.Y.S.2d 11 [1st Dept. 1998] ). Chestnut further alleges that, if it is found negligent in fact, the greater or sole responsibility for plaintiff's injuries is attributable to BX, and BX should pay its proportionate share of the judgment. These allegations state a cause of action for contribution (see Fendley v. Power Battery Co. , 167 A.D.2d 260, 261, 561 N.Y.S.2d 760 [1st Dept. 1990] ).